Symbols not wholly owned by political parties can be recovered after election defeat: Delhi High Court

The Delhi High Court has ruled that a political party has no exclusive right to the symbol assigned to it by the electoral commission and that it can be taken over if the party does not perform well in the election.

The divisional bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, while rejecting the Samata party’s appeal on November 3, had observed that the election symbol was just a simple token, which was assigned to a particular party to help the millions of illiterate voters exercise their right to vote for the candidate of their choice belonging to that party.

Citing the Election Symbols (Reservation and Allocation) Order 1968, the High Court noted that the right to use the symbol may be lost with the party’s dismal performance.

The Samata party had moved the High Court, challenging the October 19 single-bench order, which refused to entertain its petition against the EC awarding the flaming torch symbol to the Shiv Sena faction led by the former chief minister of Maharashtra Uddhav Thackeray.

Citing the Supreme Court‘s verdict in Subramanian Swamy v. Election Commission of India, the High Court observed that the symbol of a political party was neither a tangible thing nor a source of wealth.

In 1994, former Minister of Defense and Railways George Fernandes, along with Chief Minister of Bihar Nitish Kumar, formed the Samata Party, after breaking away from the Janata Dal. Many party members joined the Janata Dal (Uni) in 2003.

However, some of the leaders continued with the name and symbol of the Samata party, which was derecognized by the electoral commission in 2004 and then lost the symbol. It is now headed by Uday Mandal.

On October 10 this year, the Election Commission had awarded the flaming torch symbol to the Shiv Sena faction of Thackeray, after which the Uddhav camp announced that it would contest the Andheri East by-elections on the same issue. .

The Uday Mandal-led party has gone to the High Court, saying that although it was derecognized in 2004, the symbol was given to it for the 2014 general election.

The High Court ruled on October 19 that the party had failed to prove a demonstrable right to the symbol in question since losing its ‘recognized party’ status in 2004.

The divisive bench noted that although Samata party members were allowed to use the “flaming torch” symbol, but the party was de-recognized in 2004, it became a “free symbol”. The election commission therefore had every right to award the free symbol to any party, she added.

The Samata party was represented by lawyers Bibhuti Bhusan Mishra, Shweta Priya, Shivalika, Kamlesh Kumar Mishra, Shubham Chauhan and Kailash Jha.

Attorneys Sidhant Kumar, Vidhi Udhay Shankar and Manyaa Chandok appeared for the respondents.

(Case Title: Samata Party Through Shri Uday Kr Mandal Its President v. Election Commission of India and Others)

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